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Posts Tagged ‘U.S. Court of Appeals for the 11th Circuit’

Appeals Court Vacates Preliminary Injunction Against Alabama’s Ban on Gender-Affirming Care for Minors

Posted on: August 22nd, 2023 by Art Leonard No Comments

A three-judge panel of the 11th Circuit U.S. Court of Appeals issued an order on August 21 vacating the preliminary injunction that District Judge Liles C. Burke had issued in May 2022 to temporarily blocked the enforcement of that portion of Alabama’s “Vulnerable Child Compassion and Protection Act” that makes it a crime to provide puberty blockers and cross-sex hormones to persons under the age of 19 for purposes of confirming their transgender identity.  Eknes-Tucker v. Governor, State of Alabama, 2023 WL 5344981, 2023 U.S. App. LEXIS 21942 (11th Cir., Aug. 21, 2023), vacating 603 F. Supp. 3d 1131 (M.D. Ala. 2022).  Judge Burke’s preliminary injunction was intended to preserve the status quo (availability of such treatments) while the case was being litigated.

Circuit Judge Barbara Lagoa, an appointee of President Donald J. Trump, wrote the opinion panel opinion, which was joined by Circuit Judge Andrew Brasher and District Judge Jean-Paul Boulee of the Northern District of Georgia, both also Trump appointees.  District Judge Burke, who had issued the preliminary injunction, was also an appointee of President Trump.  Judge Brasher also wrote a concurring opinion.

This ruling has a significance beyond Alabama, as district court judges in Florida and Georgia, whose rulings are subject to 11th Circuit review, have previously issued preliminary injunctions against similar laws in those states.  The Florida and Georgia governments can now be expected to ask those judges to vacate their preliminary injunctions, and they might well do so.

The plaintiffs in the Alabama case, a group of transgender minors, their parents, and “other concerned individuals,” can ask the full twelve-member 11th Circuit bench to review this decision, but a grant of review seems unlikely, since seven of the active circuit judges are conservative Republican appointees, and “en banc” review requires a majority vote of the full circuit bench, which it is unlikely to receive.

There is already a split of federal circuit court opinion on the key legal issues involved in this decision, with the 8th Circuit having affirmed a preliminary injunction against Arkansas’s ban of gender-affirming care for minors, and the 6th Circuit haven taken a contrary view in a Tennessee case.  A circuit split over questions of constitutional interpretation lays the groundwork for Supreme Court review, if the losing party before the court of appeals files a petition with the Supreme Court.

Because the 11th Circuit’s ruling is not a final decision on the merits, however, which now continues to discovery and possible trial, the plaintiffs have an important strategic decision to make: whether to try to get the preliminary injunction reinstated or whether instead to go through a trial and an appeal of a ruling on the merits before seeking to involve the Supreme Court.  Because this ruling creates the immediate danger that minors receiving gender-affirming care in Alabama may now have to go out of state to continue it, the plaintiffs may decide that further immediate appeals are necessary.

Judge Burke’s preliminary injunction was premised on his conclusion that the law violates the due process rights of the parents and the equal protection rights of the transgender minors in violation of the 14th Amendment.  He concluded that the liberty protected by the Due Process Clause includes the right of parents to provide gender-affirming care to their transgender children, and that the state’s law employs a classification based on sex and/or gender identity violating the Equal Protection Clause when it prohibits the use of puberty blockers or cross-sex hormones for the treatment of gender dysphoria but allows those medications to be used to treat premature or delayed puberty in cisgender minors.   Under both constitutional provisions, he determined that “heightened” or “intermediate” scrutiny applied, putting the burden on the state to justify this intrusion upon individual rights by proving an important state interest that was substantially advanced by the law.  Judge Burke found that the state’s arguments opposing the preliminary injunction failed to meet this test for purposes of ordering preliminary relief to preserve the status quo.  But the 11th Circuit panel found that Judge Burke had applied the wrong constitutional analysis.

In their view, under the substantive due process theory as most recently held by the Supreme Court in Dobbs v. Jackson Women’s Health Organization (the 2022 abortion decision overruling Roe v. Wade), the liberty interested protected by the due process clause is limited to the rights expressly identified in the Bill of Rights (first ten amendments of the Constitution adopted in 1791) and those unwritten rights that were widely recognized when the 14th Amendment was adopted after the Civil War in 1867.

Judge Lagoa observed that the use of puberty blockers and cross-sex hormones for gender-affirming care was a late twentieth century phenomenon, so under the “historical” approach to recognizing protected liberty interests, there was no constitutional protection for the claimed parental rights so long as the state had a rational basis to enact the law.  This is a lenient standard of judicial review that the court found was easily met in this case by the legislative findings recited in the statute, many of which were sharply refuted just a day earlier by a federal court in Georgia that issued a preliminary injunction against that state’s ban, which is now likely to be vacated on appeal unless the district judge agrees to do so in response to this 11th Circuit opinion.  Judge Lagoa observed that the plaintiffs had presented no historical evidence in support of their due process claim, and Judge Burke had not discussed the issue in his May 2022 preliminary injunction order (which, to be fair, predated the Supreme Court’s decision in Dobbs).

As to the Equal Protection analysis, the 11th Circuit panel found that the Alabama statute does not establish a sex classification but, agreeing with Alabama’s attorneys, found that it established a classification by treatment and age, neither of which are suspect classifications.  That is, the law forbids certain treatments for people below a certain age, regardless of whether they are male or female.  As to the argument that the law discriminates because of gender identity, the panel noted recent 11th Circuit opinions expressing doubt whether gender identity is a “suspect” or “quasi-suspect” classification for equal protection purposes.  They rejected the plaintiffs’ argument that the Supreme Court’s Bostock decision of 2020 decided this issue when it held that an employer who fires an employee for being transgender has discriminated because of sex within the meaning of Title VII of the Civil Rights Act of 1974.  Judge Lagoa insisted that this ruling was irrelevant to the case now before the court, as it turned on interpretation of the particular wording of an employment discrimination statute, not a constitutional provision.  Unlike Title VII, the Equal Protection Clause expressly states only a generalized requirement that states afford all their residents “the equal protection of the laws,” the meaning of which is left to judicial interpretation.  And neither the Supreme Court nor the 11th Circuit has yet addressed the question of whether laws banning gender-affirming care for minors violate equal protection, thus undercutting Judge Burke’s conclusion that plaintiffs had shown a substantial likelihood of prevailing on the merits – a required element to support a preliminary injunction against the enforcement of a statute.

As with the due process issue, the court ruled that the equal protection issue did not require “heightened” or “strict” scrutiny and that the state could rationally decide to forbid such treatments to transgender minors as part of its power to protect the health and welfare of children against the risks incident to gender-affirming care.  Alabama’s “legislative findings” in the statute emphasize risks without acknowledging benefits, and as the Georgia district court found on August 20, legislatures that have passed these bans have exaggerated the risks and failed to give weight to the benefits that parents have described.

Judge Brashers’ concurring opinion, while agreeing with the other members of the panel that the “rational basis” test is the correct test for this case, argued that the statute could even survive heightened scrutiny, in light of the important role of the state in protecting the health and welfare of children and the legislative findings spelled out in the statute concerning the risks of gender-affirming care.

The plaintiffs are represented by pro bono attorneys from King & Spalding working with GLBTQ Legal Advocates and Defenders, the Southern Poverty Law Center, the National Center for Lesbian Rights, and the Human Rights Campaign Foundation.  The court received numerous amicus briefs including one backing plaintiffs from the major medical professional associations and one backing the state of Alabama from other states that have enacted similar laws.

 

Church Loses Battle with Amazon Over Exclusion from AmazonSmile Program

Posted on: August 1st, 2021 by Art Leonard No Comments

The AmazonSmile Foundation, a tax-exempt corporation affiliated with Amazon.com, declined an application by Coral Ridge Ministries Media, a Christian ministry and media corporation, to participate in the AmazonSmile program, because the Southern Poverty Law Center (SPLC) listed Coral Ridge as a “hate group” on its website, due to Coral Ridge’s expressed views about homosexuality.  Under the Amazon Smile program, Amazon customers designate charities from a list approved by the Foundation to receive a donation from Amazon of 0.5% of purchases of qualifying goods and services from the Amazon.com website.   Under the terms of the program, “hate groups” may not participate, even if they would otherwise qualify as tax-exempt charitable organizations.

On July 28, the U.S. Court of Appeals for the 11th Circuit rejected Coral Ridge’s state law defamation claim against SPLC for labeling it a “hate group” and its religious discrimination claim against Amazon for excluding it from the Smile program.  Circuit Judge Charles Wilson wrote for the three-judge panel in Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., 2021 WL 3184962.

Senior U.S. District Judge Myron Thompson had dismissed the lawsuit on both claims in September 2019, concluding that Coral Ridge’s allegations fell short of describing actionable defamation under Alabama law, and that the AmazonSmile program is not a public accommodation covered by Title II of the Civil Rights Act of 1964, which forbids discrimination because of religion.  See 406 F. Supp. 3d 1258 (M.D. Ala.). He alternatively found that allowing Coral Ridge’s claim would violate Amazon’s First Amendment rights, and that Coral Ridge’s factual allegations did not support a claim of discrimination because of religion.  While agreeing that Thompson correctly dismissed the case, the three-judge Court of Appeals panel ruled more narrowly than had Thompson on both claims.

To win a defamation suit, a plaintiff must allege that the defendant made a damaging false statement of fact about the plaintiff.  If the plaintiff is considered a “public figure,” which Coral Ridge conceded that it is, the plaintiff has to show that the false statement was made with “actual malice” by the defendant.  “Actual malice” is a term of art in defamation law.  It means that defendant made the false statement “with knowledge that it was false or with reckless disregard of whether it was false or not.”

“Coral Ridge did not sufficiently plead facts that give rise to a reasonable inference that SPLC ‘actually entertained serious doubts as to the veracity’ of its hate group definition and that definition’s application to Coral Ridge,” wrote Judge Wilson, “or that SPLC was ‘highly aware’ that the definition and its application was ‘probably false.’”  In this case, Coral Ridge was quibbling with the definition of a hate group that SPLC stated on its website.  Since SPLC states its own definition, however, “it is hard to see how SPLC’s use of the term would be misleading,” wrote Judge Wilson.

While conceding that Coral Ridge rejected homosexuality based on religious beliefs, the church alleged that it “has never attacked or maligned anyone on the basis of engaging in homosexual conduct,” but even accepting that allegation as true – which the court would have to do in ruling on a motion to dismiss the case as a matter of law —  the court found that Coral Ridge’s allegation provided no basis for finding that SPLC intentionally or recklessly mislabeled the church, so it upheld Judge Thompson’s dismissal of this claim.

The discrimination claim against Amazon is more complicated.  For one thing, it is not clear that Amazon.com or its affiliate AmazonSmile Foundation could be considered public accommodations in their dealings with applicants to participate in the Smiles program.  While Judge Thompson had assumed without analysis that these defendants could be considered “places of public accommodation,” he found that the AmazonSmile program “did not qualify as a ‘service,’ ‘privilege,’ or ‘advantage’ under the statute,” or, alternatively, that it could violate the First Amendment for a court to order Amazon to donate to Coral Ridge.

Avoiding having to rule on the statutory issue, the court of appeals went directly to Amazon’s constitutional defense, which it found to be valid.  The Supreme Court has frequently ruled that donating money, whether to a charity or a political cause, is expressive conduct protected by the First Amendment.  That’s the basis, for example, for the Court’s decision striking down various campaign finance reforms by Congress, such as the infamous Citizens United case.  Judge Wilson quoted Harris v. Quinn, 573 U.S. 616 (2014), a Supreme Court ruling stating that “no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”  The court found that this ruling “mapped on” to Amazon’s constitutional argument.

Coral Ridge argued that because Amazon patrons select the charities to which 0.5% of their purchases would be donated, they are the real donors, treating Amazon as a mere conduit for their donations.  But AmazonSmile makes clear in its application process that Amazon exercises judgment about which charities can participate, and specifically states that entities designated as “hate groups” by SPLC are disqualified.  “We have no problem finding that Amazon engages in expressive conduct when it decides which charities to support through the AmazonSmile program,” wrote the judge.

The court drew an analogy to the Supreme Court’s ruling in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), that the South Boston Allied War Veterans Council had a First Amendment right to exclude the Irish-American Gay, Lesbian & Bisexual Group of Boston from the St. Patrick’s Day Parade organized by the Council.  The Supreme Court ruled that the state could not require the Council to let GLIB march, as that would be imposing on the Council a message that they did not wish to include in their parade.  The Massachusetts Supreme Judicial Court had ruled that the Parade was a public accommodation and GLIB was entitled to participate, but the Supreme Court unanimously reversed that ruling to protect the free speech rights of the parade’s organizers.

“In the same way that the Council’s choice of parade units was expressive conduct,” wrote Judge Wilson, “so too is Amazon’s choice of what charities are eligible to receive donations through AmazonSmile.  Applying Title II in the way Coral Ridge proposes would not further the statute’s purpose of ‘securing for all citizens the full enjoyment of facilities described in the Act which are open to the general public.’”  Consequently, the court concluded that Coral Ridge’s proposed interpretation of Title II “would infringe on Amazon’s first Amendment Right to engage in expressive conduct and would not further Title II’s purpose,” so it affirmed Judge Thompson’s decision to dismiss Coral Ridge’s religious discrimination claim.

Judge Wilson was appointed to the Court by President Bill Clinton.  Joining his decision were Circuit Judge Britt Grant, appointed by President Donald Trump, and Senior Circuit Judge Gerald Tjoflat, appointed by President Gerald Ford.  Senior District Judge Thompson was appointed by President Jimmy Carter.

Supreme Court to Decide Whether Discrimination Because of Sexual Orientation or Gender Identity Violates Title VII’s Ban on Discrimination Because of Sex

Posted on: April 22nd, 2019 by Art Leonard No Comments

The U.S. Supreme Court announced on April 22 that it will consider appeals next term in three cases presenting the question whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of an individual’s sex, covers claims of discrimination because of sexual orientation or gender identity. Because federal courts tend to follow Title VII precedents when interpreting other federal sex discrimination statutes, such as the Fair Housing Act and Title IX of the Education Amendments of 1972, a ruling in these cases could have wider significance than just employment discrimination claims.

The first Petition for certiorari was filed on behalf of Gerald Lynn Bostock, a gay man who claimed he was fired by the Clayton County, Georgia, Juvenile Court System, for which he worked as Child Welfare Services Coordinator, because of his sexual orientation.  Bostock v. Clayton County Board of Commissioners, No. 17-1618 (filed May 25, 2018).  The trial court dismissed his claim, and the Atlanta-based 11th Circuit Court of Appeals affirmed the dismissal, 723 Fed. Appx. 964 (11th Cir., May 10, 2018), petition for en banc review denied, 894 F.3d 1335 (11th Cir., July 18, 2018), reiterating an old circuit precedent from 1979 that Title VII does not forbid discrimination against homosexuals.

The second Petition was filed by Altitude Express, a now-defunct sky-diving company that discharged Donald Zarda, a gay man, who claimed the discharge was at least in part due to his sexual orientation.  Altitude Express v. Zarda, No. 17-1623 (filed May 29, 2018).  The trial court, applying 2nd Circuit precedents, rejected his Title VII claim, and a jury ruled against him on his New York State Human Rights Law claim.  He appealed to the New York-based 2nd Circuit Court of Appeals, which ultimately ruled en banc that the trial judge should not have dismissed the Title VII claim, because that law applies to sexual orientation discrimination.  Zarda v. Altitude Express, 883 F.3d 100 (2nd Cir., Feb. 26, 2018). This overruled numerous earlier 2nd Circuit decisions.

The third petition was filed by R.G. & G.R. Harris Funeral Homes, three establishments located in Detroit and its suburbs, which discharged a funeral director, William Anthony Beasley Stephens, when Stephens informed the proprietor, Thomas Rost, about her planned transition.   R.G. & G.R. Funeral Homes v EEOC, No. 18-107 (filed July 20, 2018).  Rost stated religious objections to gender transition, claiming protection from liability under the Religious Freedom Restoration Act (RFRA) when the Equal Employment Opportunity Commission sued the funeral home under Title VII.  Stephens, who changed her name to Aimee as part of her transition, intervened as a co-plaintiff in the case.  The trial judge found that Title VII had been violated, but that RFRA protected Harris Funeral Homes from liability.  The Cincinnati-based 6th Circuit Court of Appeals affirmed the trial court’s holding that the funeral home violated Title VII, but reversed the RFRA ruling, finding that complying with Title VII would not substantially burden the funeral home’s free exercise of religion.  EEOC v. R.G. & G.R. Harris Funeral Homes, 884 F.3d 560 (6th Cir., March 7, 2018).  The 6th Circuit’s ruling reaffirmed its 2004 precedent in Smith v. City of Salem, 378 F.3d 566, using a gender stereotyping theory, but also pushed forward to hold directly that gender identity discrimination is a form of sex discrimination under Title VII.

In all three cases, the Court has agreed to consider whether Title VII’s ban on discrimination “because of sex” is limited to discrimination against a person because the person is a man or a woman, or whether, as the EEOC has ruled in several federal employment disputes, it extends to sexual orientation and gender identity discrimination claims.

The question whether the Court would consider these cases has been lingering on its docket almost a year, as the petitions in the Bostock and Zarda cases were filed within days of each other last May, and the funeral home’s petition was filed in July.  The Court originally listed the Bostock and Zarda petitions for consideration during its pre-Term “long conference” at the end of September, but then took them off the conference list at the urging of Alliance Defending Freedom, representing the funeral home, which suggested that the Court should wait until briefing on the funeral home was completed and then take up all three cases together.

The Court returned the petitions to its conference list in December, and the cases were listed continuously since the beginning of this year, sparking speculation about why the Court was delaying, including the possibility that it wanted to put off consideration of this package of controversial cases until its next term, beginning in October 2019.  That makes it likely that the cases will not be argued until next winter, with decisions emerging during the heat of the presidential election campaign next spring, as late as the end of June.

Title VII was adopted as part of the Civil Rights Act of 1964 and went into effect in July 1965.  “Sex” was added as a forbidden ground of discrimination in employment in a floor amendment shortly before House passage of the bill.  The EEOC, originally charged with receiving and investigating employment discrimination charges and attempting to conciliate between the parties, quickly determined that it had no jurisdiction over complaints charging sexual orientation or gender identity discrimination, and federal courts uniformly agreed with the EEOC.

The courts’ attitude began to change after the Supreme Court ruled in 1989 that evidence of sex stereotyping by employers could support a sex discrimination charge under Title VII in the case of Price Waterhouse v. Hopkins, 490 U.S. 228 (plurality opinion by Justice William J. Brennan), and in 1998 in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (opinion by Justice Antonin Scalia), the Court suggested that Title VII could apply to a “same-sex harassment” case.   Justice Scalia stated that Title VII’s application was not limited to the concerns of the legislators who voted for it, but would extend to “comparable evils.”

These two rulings were part of a series of cases in which the Supreme Court took an increasingly flexible approach to interpreting discrimination “because of sex,” which in turn led lower federal courts earlier in this century to reconsider their earlier rulings in LGBT discrimination cases.  Federal appeals court rulings finding protection for transgender plaintiffs relied on Price Waterhouse’s sex stereotyping analysis, eventually leading the EEOC to rule in 2012 that a transgender applicant for a federal job, Mia Macy, could bring a Title VII claim against the federal employer.  Macy v. Holder, 2012 WL 1435995. In 2015, the EEOC extended that analysis to a claim brought by a gay air traffic controller, David Baldwin, against the U.S. Transportation Department, Baldwin v. Foxx, 2015 WL 4397641, and the EEOC has followed up these rulings by filing discrimination claims in federal court on behalf of LGBT plaintiffs and appearing as amicus curiae in such cases as Zarda v. Altitude Express.

In the Harris Funeral Homes case, the 6th Circuit became the first federal appeals court to go beyond the sex stereotype theory for gender identity discrimination claims, agreeing with the EEOC that discrimination because of gender identity is always discrimination because of sex, as it involves the employer taking account of the sex of the individual in making a personnel decision.  The EEOC’s argument along the same lines for sexual orientation discrimination was adopted by the Chicago-based 7th Circuit Court of Appeals in 2017 in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. en banc), a case that the losing employer did not appeal to the Supreme Court.  In 2018, the 2nd Circuit endorsed the EEOC’s view in the Zarda case.

During the oral argument of Zarda in the 2nd Circuit, the judges expressed some amusement and confusion when an attorney for the EEOC argued in support of Zarda’s claim, and an attorney for the Justice Department argued in opposition.  When the case was argued in September 2017, the EEOC still had a majority of commissioners appointed by President Obama who continued to support the Baldwin decision, but Attorney General Jeff Sessions took the position on behalf of the Justice Department that federal sex discrimination laws do not apply to sexual orientation or gender identity discrimination claims.

Due to the Trump Administration’s failure to fill vacancies on the EEOC, the Commission currently lacks a quorum and cannot decide new cases.  Thus, the Solicitor General’s response for the government to Harris Funeral Home’s petition for review did not really present the position of the Commission, although the Solicitor General urged the Court to take up the sexual orientation cases and defer deciding the gender identity case.  Perhaps this was a strategic recognition that unless the Court was going to back away from or narrow the Price Waterhouse ruling on sex stereotyping, it was more likely to uphold the 6th Circuit’s gender identity ruling than the 2nd Circuit’s sexual orientation ruling in Zarda, since the role of sex stereotyping in a gender identity case seems more intuitively obvious to federal judges, at least as reflected in many district and appeals court decisions in recent years.

The Court sometimes tips its hand a bit when granting certiorari by reframing the questions posed by the Petitioner.  It did not do this regarding sexual orientation, merely stating that it would consolidate the two cases and allot one hour for oral argument.  Further instructions will undoubtedly come from the Court about how many attorneys will be allotted argument time, and whether the Solicitor General or the EEOC will argue on the sexual orientation issue as amicus curiae.

The Court was more informative as to Harris Funeral Homes, slightly rephrasing the question presented in the Petition.  The Court said that the Petition “is granted limited to the following question: Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.”  One wonders why the Supreme Court used the phrase “status as transgender” rather than “gender identity” in describing the first part of the question, since “gender identity” fits more neatly into the terminology of Title VII than a reference to “status.”

None of the members of the Court have addressed the questions presented in these three cases during their judicial careers up to this point, so venturing predictions about how these cases will be decided is difficult lacking pertinent information.  The four most recent appointees to the Court with substantial federal judicial careers prior to their Supreme Court appointment – Samuel Alito, Sonia Sotomayor, Neil Gorsuch, and Brett Kavanaugh – have never written a published opinion on sexual orientation or gender identity discrimination, and neither did Chief Justice John Roberts during his brief service on the D.C. Circuit Court of Appeals.  However, it seems predictable that the justices most committed to construing civil rights laws narrowly in the context of the time when they were adopted will be skeptical about the argument that the 1964 statute can be interpreted to extend to sexual orientation or gender identity discrimination.

The counsel of record for Bostock is Brian J. Sutherland of Buckley Beal LLP, Atlanta.  Clayton County, Georgia, retained Jack R. Hancock of Freeman Mathis & Gary LLP, of Forest Park, Georgia, to submit its response to the Bostock Petition.  Counsel of record for Altitude Express is Saul D. Zabell of Bohemia, New York.  The brief in opposition was filed on behalf of the Zarda Estate by Gregory Antollino of New York City.  Zabell and Antollino were both trial counsel in the case and have pursued it through the appellate process.  Several attorneys from Alliance Defending Freedom, the Scottsdale, Arizona, based conservative religious liberty litigation group, represent Harris Funeral Home, and Solicitor General Noel J. Francisco’s office represents the EEOC.   John A. Knight of the ACLU Foundation, Chicago, is counsel of record for Aimee Stephens.  It is not unusual when the Supreme Court grants review for private parties to seek out experienced Supreme Court advocates to present their arguments to the Court, so some of these attorneys listed on the Petitions and other Briefs will likely not be appearing before the Court when the cases are argued next winter.

 

 

 

 

Supreme Court Receives Two New Certiorari Petitions on Title VII Sexual Orientation Discrimination Claims

Posted on: May 31st, 2018 by Art Leonard No Comments

At the end of May the Supreme Court had received two new petitions asking it to address the question whether the ban on employment discrimination “because of sex” under Title VII of the Civil Rights Act of 1964 can be interpreted to apply to claims of discrimination because of sexual orientation.

Altitude Express, the former employer of the late Donald Zarda, a skydiving instructor who claimed he was dismissed because of his sexual orientation in violation of Title VII, has asked the Court to reverse a February 26 ruling by the U.S. Court of Appeals for the 2nd Circuit.  The 2nd Circuit ruled in Zarda v. Altitude Express, 883 F.3d 100 (en banc), that the district court erred in dismissing Zarda’s Title VII claim as not covered under the statute, and sent the case back to the U.S. District Court, holding that sexual orientation discrimination is a “subset” of sex discrimination.

Gerald Lynn Bostock, a gay man who claims he was fired from his job as the Child Welfare Services Coordinator for the Clayton County, Georgia, Juvenile Court System because of his sexual orientation, is asking the Court to overturn a ruling by the 11th Circuit Court of Appeals, which reiterated in his case its recent ruling in Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), cert. denied, 138 S. Ct. 557 (2017), that an old precedent requires three-judge panels within the 11th Circuit to dismiss sexual orientation claims under Title VII.  As in the Evans case, the 11th Circuit refused Bostock’s request to consider the question en banc. See Bostock v. Clayton County Board of Commissioners, 2018 U.S. App. LEXIS 12405, 2018 WL 2149179 (11th Cir., May 10, 2018).

The question whether Title VII can be used to challenge adverse employment decisions motivated by the worker’s actual or perceived sexual orientation is important as a matter of federal law, and even more important nationally because a majority of states do not forbid such discrimination by state statute. Although Title VII applies only to employers with at least 15 employees, thus leaving regulation of small businesses to the states and localities, its applicability to sexual orientation discrimination claims would make a big difference for many lesbian, gay and bisexual workers in substantial portions of the country where such protection is otherwise unavailable outside those municipalities and counties that have local ordinances that cover sexual orientation claims. It would give them both a federal forum to litigate their employment discrimination claims and substantive protection under Title VII.  For example, not one state in the southeastern United States forbids sexual orientation discrimination by statute.  In Georgia, individuals employed outside of a handful of municipalities are, like Gerald Bostock in Clayton County, out of luck unless the federal law can be construed to protect them.  Thus, an affirmative ruling by the Supreme Court would be especially valuable for rural employees who are unlikely to have any state or local protection.  (The question whether a county or city ordinance provides protection depends on where the employer does business, not where the employee lives, so somebody living in Birmingham, Alabama, but working in a factory or a retail business outside the city limits, would not be protected by the city’s ordinance.)

During the first several decades after Title VII went into effect on July 2, 1965, every attempt by LGBT plaintiffs to assert sexual orientation or gender identity discrimination claims was rejected by the Equal Employment Opportunity Commission (EEOC) and the federal courts. Two Supreme Court decisions adopting broad interpretations of the meaning of discrimination “because of sex” have led to a movement to reconsider that old position.  In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Court accepted the argument that an employer who discriminates against a worker because of the worker’s failure to comport with stereotypes the employer holds about sex and gender may have acted out of a forbidden motivation under Title VII.  And in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), holding that the interpretation of “because of sex” was not limited to the factual scenarios envisioned by Congress in 1964, the Court rejected the 5th Circuit’s holding that Title VII could not apply to a case where a man was being subjected to hostile environment harassment of a sexual nature by male co-workers.  In that case, the Court (speaking unanimously through Justice Antonin Scalia) said that Title VII could be applied to “comparable evils” to those envisioned by Congress.  Taking these two cases together as precedents, lower federal courts began to interpret federal laws forbidding sex discrimination to be susceptible to broader interpretations, first in cases involving transgender plaintiffs, and then more recently in cases involving lesbian, gay or bisexual plaintiffs.

The EEOC embraced this movement in the lower federal courts during the Obama Administration in rulings reversing half a century of agency precedent to extend jurisdiction to gender identity and sexual orientation claims. The key sexual orientation ruling is Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641 (July 15, 2015), issued just weeks after the Supreme Court’s marriage equality ruling, Obergefell v. Hodges.  The EEOC’s rulings are not binding on the federal courts, however, and the agency does not have the power to enforce its rulings without the courts’ assistance.  It does have power to investigate charges of discrimination and to attempt to persuade employers to agree to settle cases that the agency finds to be meritorious. The decision that the statute covers sexual orientation also provides a basis to ground retaliation claims under Title VII when employees suffer adverse employment actions because they oppose discrimination or participate in enforcement proceedings.

Plaintiffs bringing these sexual orientation cases in federal courts have had an uphill battle because of the weight of older circuit court decisions rejecting such claims. Under circuit court rules, old appellate decisions remain binding not only on the district courts in each circuit but also on the three-judge circuit court panels that normally hear appeals.  Only a ruling en banc by an expanded (eleven judges in the huge 9th Circuit) or full bench of the circuit court can overrule a prior circuit precedent, in addition, of course, to the Supreme Court, which can overrule circuit court decisions.  Some have argued, as the petition recently filed in Bostock argues, that Price Waterhouse and Oncale implicitly overrule those older precedents, including the case that the 11th Circuit cites as binding, Blum v. Golf Oil Corporation, 597 F.2d 936 (5th Cir. 1979), a case from the old 5th Circuit.  (Congress subsequently split the 5th Circuit, separating off its eastern half to create a new 11th Circuit, which treats as binding old 5th Circuit precedents that have not been overruled en banc by the 11th Circuit.)  The 2nd Circuit ruling in Zarda specifically looked to Price Waterhouse and Oncale as well as the EEOC’s Baldwin decision to overrule several earlier panel decisions and establish a new interpretation of Title VII for the federal courts in Vermont, New York, and Connecticut.

Before the Zarda decision, the only circuit court to issue a similar ruling as a result of en banc review was the 7th Circuit in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017).  At the time of Hively, two out of the three states in the 7th Circuit – Wisconsin and Illinois – already had state laws banning sexual orientation discrimination, so the ruling was most important for people working in Indiana.  A three-judge panel of the 8th Circuit, covering seven Midwestern states, most of which do not have state laws banning sexual orientation discrimination, will be hearing argument on this issue soon in Horton v. Midwest Geriatric Management, 2017 U.S. Dist. LEXIS 209996, 2017 WL 6536576 (E.D. Mo. Dec. 21, 2017), in which the U.S. District Court dismissed a sexual orientation discrimination claim in reliance on a 1989 decision by an 8th Circuit panel.

Bostock’s petition argues that circuit courts should not be treating as binding pre-Price Waterhouse rulings on this issue.  Under this logic, the 8th Circuit panel in Horton should be able to disclaim that circuit’s 1989 ruling, although it is more likely that an overruling would require an en banc hearing, unless, of course, the Supreme Court grants one of the new petitions and sides with the plaintiffs in these cases.

Altitude Express’s petition, by contrast, relies on the Supreme Court’s general disposition against recognizing “implied” overruling, arguing that the 2nd and 7th Circuits have erred in interpreting Title VII to apply to claims that Congress did not intend to address when it passed Title VII in 1964, and that neither Price Waterhouse nor Oncale has directly overruled the old circuit court precedents.  While the Altitude Express petition states sympathy, even support, for the contention that sexual orientation discrimination should be illegal, it lines up with the dissenters in the 2nd and 7th Circuits who argued that it is up to Congress, not the courts, to add “sexual orientation” through the legislative process.

A similar interpretation battle is playing out in the circuit courts of appeals concerning gender identity discrimination claims. However, plaintiffs are having more success with these claims than with sexual orientation claims because it is easier for the courts to conceptualize gender identity – especially in the context of transition – as non-conformity with gender stereotypes, and thus encompassed directly within the scope of Price Waterhouse.  Although only one circuit court – again the 7th – has gone so far as to embrace the EEOC’s determination that gender identity discrimination claims can be considered discrimination “because of sex” without resorting to a stereotyping theory, most of the courts of appeals that have considered the question have agreed that the stereotyping theory can be put to work under Title VII to allow transgender plaintiffs to pursue their claims in federal court, and many have also applied it under Title IX of the Education Amendments Act of 1972 to find protection for transgender students. If the Supreme Court were to take up the sexual orientation issue, a resulting decision could have significance for gender identity claims as well, depending on the Court’s rationale in deciding the case.

The timing of these two petitions, filed late in the Term and after all oral arguments have been concluded, means that if the Court wants to take up this issue, the earliest it could be argued would be after the new Term begins on October 1, 2018. As of now, nobody knows for certain what the composition of the Court will be when the new term begins.  Rumors of the possible retirement of Justice Anthony Kennedy (who will turn 82 in July), likely to be the “swing” voter on this as on all LGBT rights cases, are rife, and although Justices Ruth Bader Ginsburg (recently turned 85) and Stephen Breyer (turning 80 in August) have expressed no intentions of stepping down, they are – together with Kennedy – the oldest members of the Court.  Justice Clarence Thomas, a decisive vote against LGBT rights at all times, who was appointed by George H.W. Bush in 1991, is the second-longest serving member of the Court after Kennedy (a Reagan appointee in 1987), but Thomas, who was relatively young at his appointment, will turn 70 on June 23, and most justices have continued to serve well past that age, so occasional speculation about his retirement is probably premature.  With the exception of Jimmy Carter, who did not get to appoint any Supreme Court justices during his single term, every president in modern times has gotten to appoint at least two justices to the Court during their first (or only) term.  So there is considerable suspense as to the composition of the Court for its 2018-2019 Term.  If the Justices are thinking strategically about their certiorari votes on controversial issues, they might well hold back from deciding whether to grant these petitions until they see the lay of the land after the Court’s summer recess.

The Altitude Express petition was filed by Saul D. Zabell and Ryan T. Biesenbach, Zabell & Associates, P.C., of Bohemia, N.Y. The Zarda Estate is represented by Gregory Antollino and Stephen Bergstein, of Bergstein & Ullrich, LLP.  The Bostock petition was filed by Brian J. Sutherland and Thomas J. Mew IV of Buckley Beal LLP, Atlanta, Georgia.  The Trump Administration Justice Department sided with Altitude Express in the en banc argument before the 2nd Circuit in Zarda, while the EEOC sided with the Estate of Zarda.  The Bostock petition seizes on this divided view from the government representatives in the Zarda argument as yet another reason why the Supreme Court should take up the issue and resolve it once and for all.  Numerous amicus briefs were filed for the 2nd Circuit en banc argument.  The Bostock 11th Circuit appeal attracted little notice and no amicus briefs.

 

Supreme Court Denies Review in Title VII Sexual Orientation Discrimination Case

Posted on: December 11th, 2017 by Art Leonard No Comments

The U.S. Supreme Court announced on December 11 that it will not review a decision by a three-judge panel of the Atlanta-based 11th Circuit Court of Appeals, which ruled on March 10 that a lesbian formerly employed as a security guard at a Georgia hospital could not sue for sexual orientation discrimination under Title VII of the Civil Rights Act of 1964.  The full 11th Circuit denied a motion to reconsider the case on July 10, and Lambda Legal, representing plaintiff Jameka Evans, filed a petition with the Supreme Court seeking review on September 7.  Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), rehearing en banc denied, 7/6/2017, cert. denied, 2017 WL 4012214 (12/11/2017).

At the heart of Lambda’s petition was an urgent request to the Court to resolve a split among the lower federal courts and within the federal government itself on the question whether Title VII, which bans employment discrimination because of sex by employers that have at least 15 employees, can be interpreted to ban discrimination because of sexual orientation.

Nobody can deny that members of Congress voting on the Civil Rights Act in 1964 were not thinking about banning sexual orientation discrimination at that time, but their adoption of a general ban on sex discrimination in employment has been developed by the courts over more than half a century to encompass a wide range of discriminatory conduct reaching far beyond the simple proposition that employers cannot discriminate against an individual because she is a woman or he is a man.

Early in the history of Title VII, the Supreme Court ruled that employers could not treat people differently because of generalizations about men and women, and by the late 1970s had accepted the proposition that workplace harassment of women was a form of sex discrimination. In a key ruling in 1989, the Court held that discrimination against a woman because the employer considered her inadequately feminine in her appearance or behavior was a form of sex discrimination, under what was called the sex stereotype theory, and during the 1990s the Court ruled that a victim of workplace same-sex harassment could sue under Title VII, overruling a lower court decision that a man could sue for harassment only if he was being harassed by a woman, not by other men.  In that decision for a unanimous court, Justice Antonin Scalia opined that Title VII was not restricted to the “evils” identified by Congress in 1964, but could extend to “reasonably comparable evils” to effectuate the legislative purpose of achieving a non-discriminatory workplace.

By the early years of this century, lower federal courts had begun to accept the argument that the sex stereotype theory provided a basis to overrule earlier decisions that transgender people were not protected from discrimination under Title VII.  There is an emerging consensus among the lower federal courts, bolstered by rulings of the Equal Employment Opportunity Commission (EEOC), that gender identity discrimination is clearly discrimination because of sex, and so the 11th Circuit Court of Appeals ruled several years ago in a case involving a transgender woman fired from a research position at the Georgia legislature.

However, the idea that some variant of the sex stereotype theory could also expand Title VII to protect lesbian, gay or bisexual employees took longer to emerge.  It was not until 2015 that the EEOC issued a decision in the Baldwin case concluding that sexual orientation discrimination is a form of sex discrimination, in part responding to the sex stereotype decisions in the lower federal courts.  And it was not until April 4 of this year that a federal appeals court, the Chicago-based 7th Circuit Court of Appeals, approved that theory in a strongly worded opinion by a decisive majority of the entire 11-judge circuit bench, just a few weeks after the 11th Circuit panel ruling in the Jameka Evans case.  Writing for the 7th Circuit in the Hively  case, Judge Diane Wood said, “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’”

The 11th Circuit panel’s 2-1 decision to reject Jameka Evans’ sexual orientation discrimination claim seemed a distinct setback in light of these developments.  However, consistent with the 11th Circuit’s prior gender identity discrimination ruling, one of the judges in the majority and the dissenting judge agreed that Evans’ Title VII claim could be revived using the sex stereotype theory based on how she dressed and behaved, and sent the case back to the lower court on that basis.  The dissenting judge would have gone further and allowed Evans’ sexual orientation discrimination claim to proceed under Title VII.  The other judge in the majority strained to distinguish this case from the circuit’s prior sex stereotype ruling, and would have dismissed the case outright.

The 7th Circuit’s decision in April opened up a split among the circuit courts in light of a string of rulings by several different circuit courts over the past several decades rejecting sexual orientation discrimination claims by gay litigants, although several of those circuits have since embraced the sex stereotype theory to allow gay litigants to bring sex discrimination claims under Title VII if they could plausibly allege that they suffered discrimination because of gender nonconforming dress or conduct.  Other courts took the position that as long as the plaintiff’s sexual orientation appeared to be the main reason why they suffered discrimination, they could not bring a Title VII claim.

In recent years, several federal trial judges have approved an alternative argument: that same-sex attraction is itself a departure from widely-held stereotypes of what it means to be a man or a woman, and thus that discrimination motivated by the victim’s same-sex attraction is a form of sex discrimination under Title VII.  Within the New York-based 2nd Circuit, several trial judges have recently embraced this view, but three-judge panels of the Court of Appeals consistently rejected it.  Some progress was made last spring, however, when a three-judge panel in Christiansen v. Omnicom Group overruled a trial judge to find that a plaintiff whose sexual orientation was clearly a motivation for his discharge could bring a sex stereotype Title VII claim when he could plausibly allege behavioral nonconformity apart from his same-sex attraction.

More recently, however, the 2nd Circuit agreed to grant en banc reconsideration to the underlying question and heard oral argument in September in Zarda v. Altitude Express on whether sexual orientation discrimination, as such, is outlawed by Title VII.  That case involved a gay male plaintiff whose attempt to rely alternatively on a sex stereotype claim had been rejected by the trial judge in line with 2nd Circuit precedent.  Plaintiff Donald Zarda died while the case was pending, but it is being carried on by his Estate.  Observers at the oral argument thought that a majority of the judges of the full circuit bench were likely to follow the lead of the 7th Circuit and expand the coverage of Title VII in the 2nd Circuit (which covers Connecticut, Vermont and New York).  With argument having been held more than two months ago, a decision could be imminent.

Much of the media comment about the Zarda case, as well as the questioning by the judges, focused on the spectacle of the federal government opposing itself in court.  The EEOC filed an amicus brief in support of the Zarda Estate, and sent an attorney to argue in favor of Title VII coverage.  The Justice Department filed a brief in support of the employer, and sent an attorney to argue that the three-judge panel had correctly rejected the plaintiff’s Title VII claim.  The politics of the situation was obvious: The Trump appointees now running the Justice Department had changed the Department’s position (over the reported protest of career professionals in the Department), while the holdover majority at the EEOC was standing firm by the decision that agency made in 2015.  As Trump’s appointment of new commissioners changes the agency’s political complexion, this internal split is likely to be resolved against Title VII protection for LGBT people.

This is clearly a hot controversy on a question with national import, so why did the Supreme Court refuse to hear the case?  The Court does not customarily announce its reasons for denying review, and did not do so this time.  None of the justices dissented from the denial of review, either.

A refusal to review a case is not a decision on the merits by the Court, and does not mean that the Court approves the 11th Circuit Court of Appeals’ decision.  It is merely a determination by the Court, which exercises tight control over its docket, not to review the case.  Hypothesizing a rationale, one might note that the plaintiff here has not suffered a final dismissal of her case, having been allowed by the 11th Circuit to file an amended complaint focusing on sex stereotype instead of sexual orientation, so she can still have her day in court and there is no pressing need for the Court to resolve the circuit split in her case.  One might also note that Georgia Regional Hospital did not even appear before the 11th Circuit to argue its side of the case, and did not file papers opposing Lambda Legal’s petition until requested to do so by the Court.

On October 11, the Supreme Court Clerk’s office distributed the Lambda petition and some amicus briefs supporting it to the justices in anticipation of their conference to be held October 27. The lack of a response by Georgia Regional Hospital evidently sparked concern from some of the justices, who directed the Clerk to ask the Hospital to file a response, which was filed by Georgia’s Attorney General on November 9, and the case was then put on the agenda for the Court’s December 8 conference, at which the decision was made to deny review.  The responsive papers argued, among other things, that the Hospital had not been properly served with the Complaint that initiated the lawsuit. Those kinds of procedural issues sometimes deter the Court from taking up a case.

For whatever reason, the Court has put off deciding this issue, most likely for the remainder of the current Term. The last argument day on the Court’s calendar is April 25, and the last day for announcing decisions is June 25.  Even if the 2nd Circuit promptly issues a decision in the Zarda case, the losing party would have a few months to file a petition for Supreme Court review, followed by a month for the winner filing papers responding to the Petition.  Even if the Court then grants a petition for review, thus starting the clock running for filing merits briefs and amicus briefs, it is highly likely that once all these papers are submitted, it will be too late in the Term for the case to be argued, so it would end up on the argument calendar for Fall 2018.

Which raises the further question of who would be on the Court when this issue is finally before it? Rumors of retirements are rife, and they center on the oldest justices, pro-LGBT Ruth Bader Ginsburg and conservative but generally pro-gay Anthony Kennedy.  If President Trump gets to nominate successors to either of them, the Court’s receptivity to gay rights arguments is likely to be adversely affected.

Supreme Court May Consider Whether Federal Law Already Outlaws Sexual Orientation Discrimination

Posted on: July 12th, 2017 by Art Leonard No Comments

Lambda Legal has announced that it will petition the Supreme Court to decide whether Title VII of the Civil Rights Act of 1964, which bans employment discrimination because of sex, also bans discrimination because of sexual orientation. Lambda made the announcement on July 6, when the U.S. Court of Appeals for the 11th Circuit, based in Atlanta, announced that the full circuit court would not reconsider a decision by a three-judge panel that had ruled on March 10 against such a claim in a lawsuit by Jameka K. Evans, a lesbian security guard who was suing Georgia Regional Hospital for sexual orientation discrimination.

The question whether Title VII can be interpreted to cover sexual orientation claims got a big boost several months ago when the full Chicago-based 7th Circuit ruled that a lesbian academic, Kimberly Hively, could sue an Indiana community college for sexual orientation discrimination under the federal sex discrimination law, overruling prior panel decisions from that circuit.  The 7th Circuit was the first federal appeals court to rule in favor of such coverage.  Lambda Legal represented Hively in her appeal to the 7th Circuit.

Title VII, adopted in 1964 as part of the federal Civil Rights Act, did not even include sex as a prohibited ground of discrimination in the bill that came to the floor of the House of Representatives for debate. The primary focus of the debate was race discrimination. But a Virginia representative, Howard Smith, an opponent of the bill, introduced a floor amendment to add sex.  The amendment was approved by an odd coalition of liberals and conservatives, the former out of a desire to advance employment rights for women, many of the later hoping that adding sex to the bill would make it too controversial to pass. However, the amended bill was passed by the House and sent to the Senate, where a lengthy filibuster delayed a floor vote for months before it passed without much discussion about the meaning of the inclusion of sex as a prohibited ground for employment discrimination.  (The sex amendment did not apply to other parts of the bill, and the employment discrimination title is the only part of the 1964 Act that outlaws sex discrimination.)

Within a few years both the Equal Employment Opportunity Commission and federal courts had issued decisions rejecting discrimination claims from LGBT plaintiffs, holding that Congress did not intend to address homosexuality or transsexualism (as it was then called) in this law. The judicial consensus against coverage did not start to break down until after the Supreme Court’s 1989 decision on Ann Hopkin’s sex discrimination lawsuit against Price Waterhouse.  The accounting firm had denied her partnership application.  The Court accepted her argument that sex stereotyping had infected the process, based on sexist comments by partners of the firm concerning her failure to conform to their image of a proper “lady partner.”

Within a few years, litigators began to persuade federal judges that discrimination claims by transgender plaintiffs also involved sex stereotyping. By definition a transgender person does not conform to stereotypes about their sex as identified at birth, and by now a near consensus has emerged among the federal courts of appeals that discrimination because of gender identity or expression is a form of sex discrimination under the stereotype theory.  The Equal Employment Opportunity Commission changed its position as well, following the lead of some of the court decisions, in 2012.

Advocates for gay plaintiffs also raised the stereotype theory, but with mixed success. Most federal circuit courts were unwilling to accept it unless the plaintiff could show that he or she was gender-nonconforming in some obvious way, such as effeminacy in men or masculinity (akin to the drill sergeant demeanor of Ann Hopkins) in women.  The courts generally rejected the argument that to have a homosexual or bisexual orientation was itself a violation of employer’s stereotypes about how men and women were supposed to act, and some circuit courts, including the New York-based 2nd Circuit, had ruled that if sexual orientation was the “real reason” for discrimination, a Title VII claim must fail, even if the plaintiff was gender nonconforming.  Within the past few years, however, several district court and the EEOC have accepted the stereotype argument and other arguments insisting that discrimination because of sexual orientation is always, as a practical matter, about the sex of the plaintiff.  This year, for the first time, a federal appeals court, the Chicago-based 7th Circuit, did so in the Hively case.  A split among the circuits about the interpretation of a federal statute is listed by the Supreme Court in its practice rules as the kind of case it is likely to accept for review.

The Supreme Court has been asked in the past to consider whether Title VII could be interpreted to cover sexual orientation and gender identity claims, but it has always rejected the invitation, leaving in place the lower court rulings.

However, last year the Court signaled its interest in the question whether sex discrimination, as such, includes gender identity discrimination, when it agreed to review a ruling by the Richmond-based 4th Circuit Court of Appeals, which held that the district court should not have dismissed a sex-discrimination claim by Gavin Grimm, a transgender high school student, under Title IX of the Education Amendments of 1972, which bans sex discrimination by schools that get federal money.  The 4th Circuit held in Grimm’s case that the district court should have deferred to an interpretation of the Title IX regulations by the Obama Administration’s Department of Education, which had decided to follow the lead of the EEOC and federal courts in Title VII cases and accept the sex stereotyping theory for gender identity discrimination claims. Shortly before the Supreme Court was scheduled to hear arguments in this case, however, the Trump Administration “withdrew” the Obama Administration interpretation, pulling the rug out from under the 4th Circuit’s decision.  The Supreme Court then canceled the argument and sent the case back to the 4th Circuit, where an argument has been scheduled for this fall on the question whether Title IX applies in the absence of such an executive branch interpretation.

Meanwhile, the Title VII issue has been percolating in many courts around the country. Here in New York, the 2nd Circuit Court of Appeals has had several recent panel decisions in which the judges have refused to allow sexual orientation discrimination claims because they are bound by earlier decisions of the court to reject them, although in some cases they have said that the gay plaintiff could maintain their Title VII case if they could show gender nonconforming behavior sufficient to evoke the stereotype theory. In one of these cases, the chief judge of the circuit wrote a concurring opinion, suggesting that it was time for the Circuit to reconsider the issue by the full court.  In another of these cases, Zarda v. Altitude Express, the court recently granted a petition for reconsideration by the full bench, appellants’ briefs and amicus briefs were filed late in June, and oral argument has been scheduled for September 26.  The EEOC as well as many LGBT rights and civil liberties organizations and the attorneys general of the three states in the circuit have filed amicus briefs, calling on the 2nd Circuit to follow the 7th Circuit’s lead on this issue.

This sets up an interesting dynamic between the 11th Circuit case, Evans, and the 2nd Circuit case, Zarda.  Lambda’s petition for certiorari (the technical term for seeking Supreme Court review) is due to be filed by 90 days after the denial of its rehearing petition by the 11th Circuit, which would put it early in October, shortly after the 2nd Circuit’s scheduled argument in Zarda.  After Lambda files its petition, the Respondent, Georgia Regional Hospital (perhaps, as a public hospital, represented by the state attorney general’s office), will have up to 30 days to file a response, but this is uncertain, since the hospital failed to send an attorney to argue against Evans’ appeal before the 11th Circuit panel.  Other interested parties who want the Supreme Court to take or reject this case may filed amicus briefs as well.  If Lambda uses all or virtually all of its 90 days to prepare and file its petition, the Supreme Court would most likely not announce whether it will take the case until late October or November.  If it takes the case, oral argument would most likely be held early in 2018, with an opinion expected by the end of the Court’s term in June.

That leaves the question whether the 2nd Circuit will move expeditiously to decide the Zarda case?  Legal observers generally believe that the 2nd Circuit is poised to change its position and follow the 7th Circuit in holding that sexual orientation claims can be litigated under Title VII, but the circuit judges might deem it prudent to hold up until the Supreme Court rules on the Evans petition and, if that petition is granted, the 2nd Circuit might decide to put off a ruling until after the Supreme Court rules.  In that case, there will be no change in the 2nd Circuit’s position until sometime in the spring of 2018, which would be bad news for litigants in the 2nd Circuit.  Indeed, some district judges in the Circuit are clearly champing at the bit to be able to decide sexual orientation discrimination claims under Title VII, and two veteran judges have bucked the circuit precedent recently, refusing to dismiss sexual orientation cases, arguing that the 2nd Circuit’s precedents are outmoded.  A few years ago the 2nd Circuit accepted the argument in a race discrimination case that an employer violated Title VII by discriminating against a person for engaging in a mixed-race relationship, and some judges see this as supporting the analogous argument that discriminating against somebody because they are attracted to a person of the same-sex is sex discrimination.

The 2nd Circuit has in the past moved to rule quickly on an LGBT issue in a somewhat similar situation.  In 2012, cases were moving up through the federal courts challenging the Defense of Marriage Act (DOMA), which had been held unconstitutional by several district courts.  A race to the Supreme Court was emerging between cases from Boston (1st Circuit), New York (2nd Circuit), and San Francisco (9th Circuit).  The Supreme Court received a petition to review the 1st Circuit case, where GLAD represented the plaintiffs.  The ACLU, whose case on behalf of Edith Windsor was pending before the 2nd Circuit, filed a petition with the Supreme Court seeking to leapfrog the district court and bring the issue directly up to the highest court.  After the ACLU filed its petition, the 2nd Circuit moved quickly to issue a decision, and the Supreme Court granted the petition.  Meanwhile, Lambda Legal, representing the plaintiff whose case was pending in the 9th Circuit, had filed its own petition asking the Supreme Court to grant review before the 9th Circuit decided that appeal.  It was all a bit messy, but ultimately the Court granted the ACLU’s petition and held the other petitions pending its ultimate decision, announced on June 26, 2013, declaring DOMA unconstitutional.  If the 2nd Circuit moves quickly, it might be able to turn out an opinion before the Supreme Court has announced whether it will review the Evans case, as it did in 2012 in the DOMA case (although that was just a panel decision, not a ruling by the full circuit bench.)  The timing might be just right for that.

Another concern, of course, is the composition of the Supreme Court bench when this issue is to be decided. At present, the five justices who made up the majority in the DOMA and marriage equality cases are still on the Court, but three of them, Justices Anthony Kennedy (who wrote those opinions), Ruth Bader Ginsburg, and Stephen Breyer, are the three oldest justices, and there have been rumors about Kennedy considering retirement.  Donald Trump’s first appointee to the Court, Neil Gorsuch, filling the seat previously occupied by arch-homophobe Antonin Scalia, immediately showed his own anti-LGBT colors with a disingenuous dissenting opinion issued on June 26 in a case from Arkansas involving birth certificates for the children of lesbian couples, and it seems likely that when or if Trump gets another appointment, he will appoint a person of similar views.  Kennedy, who turns 81 this month, has not made a retirement announcement and has hired a full roster of court clerks for the October 2017 Term, so it seems likely he intends to serve at least one more year.  There is no indication that Ginsburg, 84, or Breyer, 79 in August, plan to retire, but given the ages of all three justices, nothing is certain.

11th Circuit Vacates Child Porn Conviction Finding Jury Might Have Been Biased

Posted on: October 30th, 2014 by Art Leonard No Comments

An 11th Circuit U.S. Court of Appeals panel voted 2-1 in United States v. Bates, 2014 WL 5421846, 2014 U.S. App. LEXIS 20564 (Oct. 27, 2014), to vacate the child pornography conviction of Cameron Dean Bates, who had been convicted by a Southern District of Florida jury and sentenced to 240 months in federal prison for receiving, accessing, distributing, and possessing child pornography.  The majority of the panel concluded that the trial judge erred by denying Bates’ request that potential jurors be questioned about their attitudes concerning homosexuality, and that this was not harmless error in light of the evidence the government proposed to introduce in the case.  Dissenting Judge Robert L. Hinkle, a district court judge from a different district in Florida, contended that the error was harmless because of the overwhelming evidence against Bates, but the majority clearly thought this wasn’t the point; that a criminal defendant is entitled to a fair trial before an impartial jury.

The opinion for the court by Judge Beverly Baldwin Martin does not say how the government got wind of Bates’s activities, but investigators enlisted Bates’s internet service providers to help them trace downloads of child porn to his computer, then obtained a search warrant and did a forensic investigation that yielded not only evidence concerning child pornography but also evidence of Bates’s homosexual activities with other adults and occasional cross-dressing, which the government intended to introduce at trial (and did, over Bates’s objections) in countering Bates’s argument that somebody else was using his laptop to access child porn. Bates sought voir dire about the jurors’ attitudes towards homosexuality, but the obtuse district judge said that he could not see how that had anything to do with the case, and refused the request, just as he overruled Bates’s motions to exclude the evidence going to his homosexual activities.

“In this case,” wrote Martin, “the District Court optimistically declared that our society is beyond prejudice on the basis of a person’s sexual orientation. While we admire the District Court’s optimism, it remains the case that ‘there will be, on virtually every jury, people who would find the lifestyle and sexual preferences of a homosexual or bisexual person offensive’ [citing numerous cases].  We have no doubt that evidence of Mr. Bates’s sexual activity and gender non-conforming conduct had the potential to unfairly prejudice jurors.”

As to the District Court’s puzzlement about how this had anything to do with the case, the court of appeals majority found that Bates’s sexual activities “became ‘inextricably bound up’ with the issues to be resolved at trial. This fact should have been obvious to the District Court given its ruling before voir dire that it did not intend to exclude the sexually explicit images of Mr. Bates found on his computer.  And if it wasn’t obvious to the District Court before jury selection began, it should have become obvious when Mr. Bates requested the Court to explore the potential prejudice before striking jurors.  When the District Court expressed confusion about what homosexuality ‘has to do with this case,’ the government explained that it intended to introduce ‘pictures and items from the defendant’s computer to show that he was engaged in homosexual activity. . . which goes to show that he wouldn’t be sharing his computer with other people.”

The court held that the government failed in its burden to prove harmless error. “Because the District Court refused to ask any questions at all about prejudice on the basis of sexual preferences, we have no way to discern whether the jury was biased against Mr. Bates for that reason,” wrote Judge Martin.  “Because the jurors had no reason to know that issues about same-sex sexual practices would be part of the evidence at trial, they had no reason to offer up prejudices they might harbor on that basis when the District Court posed its general questions.”  The court also expressed lack of confidence that the trial judge’s limiting instructions to the jurors cautioning them about the use of the evidence would have adequately cured the “constitutional deficiencies in this voir dire process.”

“In light of the quantity and the explicit content of the evidence about Mr. Bates’s sexuality paraded before the jury,” wrote Martin, “the risk that latent, undiscovered prejudices may have inflamed is great. Indeed, it seems that the government expected the evidence to have exactly that effect at the time it was introduced.  After asking one of Mr. Bates’s family members whether she knew about his same-sex sexual activities and gender non-conforming behavior, the government followed up with this telling question: ‘And would that have affected your opinion of him?’  We can think of no reason to ask this question but to suggest that, perhaps, it should.”

“If Mr. Bates is to be convicted,” Martin continued, “we must have sufficient assurances that it is done by a fair and impartial jury of his peers. Here, the risk that Mr. Bates was convicted by jurors who cared less about the charged criminal conduct than about his perfectly legal sexual activity, is intolerably high.  His convictions must therefore be vacated, and we remand this case for further proceedings.”  The court also commented that the trial court may have given Bates inadequate time prior to his trial to prepare his defense, as the government added new charges shortly before trial, and concluded, “we hope and expect that the District Court will be mindful of his need for expert assistance and adequate time to prepare for trial.”

Judge Hinkle’s harmless error dissent ended on a defensive note. “One is left asking why, if the evidence of guilt was as clear as I believe it was, the government asked improper, prejudicial questions?  A possible inference is that the government thought a conviction was not certain.  A possible inference is that the government thought at least some jurors were biased and that appealing to that bias would help bring about a conviction.  Why else would the government do it?  I am left in the uncomfortable position of concluding the government was wrong – that it didn’t need the prejudicial impact it improperly pursued.  It is with no enthusiasm that I dissent.”